BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL. Complaint No.02 of 2014 Date of instt. 03.01.2014 Date of decision:03.01.2018 M/s Surya Marble and Sanitary Goods, Marble Market, Kunjpura Road, Karnal, through its proprietor Shri Pardeep Bhamba son of Shri Ram Purshotam Bhamba. ??.Complainant. Versus D.T.H., R.M.C. Plant, # 102.7 Miles Stone, N.H.-1,, G.T. Road, near village Kohand, District Karnal, through its partners Parveen Baveja and Satish Baveja. ?..Opposite Party. Complaint u/s 12 of the Consumer Protection Act. Before Sh. Jagmal Singh??President. Sh. Anil Sharma???.Member. Present Shri Dinesh Chauhan Advocate for complainants. Shri Rohit Sharma Advocate for opposite party. ORDER: This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that complainant is a proprietorship firm having its office at Marble Market, Kunjpura Road, Karnal. Complainant wants to put R.C.C. Slab on the second floor of his building. Complainant contacted the OP and finalized all the terms and conditions settled for putting R.C.C. Slab and in return the OP also assured that R.C.C. Slab would be levied in presence of his civil engineer and the same would attract a compressive strengths of M-25 . The OP also persuaded the complainant for the use of cement of ACC Plant and the same would be supplied to the OP at his plant two days before the levying of R.C.C. Slab, where a mixture would be prepared with the help of other building material and machine installed for R.C.C. Slab. As per assurance of the OP, the complainant had placed order for 250 bags of cement with M/s Gian Chand Satbir Singh and made the payment. The cement was supplied at the site of the OP on 31.5.2013. Accordingly, as agreed, the OP had come to the site on 2.6.2013 and started proceeding for putting R.C.C.Slab on the said building but when half of the work of R.C.C. Slab has been done on the building, then the complainant saw holes and cracks in the said R.C.C. Slab. The complainant requested the OP to stop the construction work and asked about the holes and cracks and the OP told that these holes and cracks would disappeared after sometime and it is normal and no need to worry and persuaded the complainant to continue with the construction work and completed the same. But with the passage of time, the holes and cracks were started increasing. The complainant requested to the OP to call your civil engineer and check these holes and cracks to know the reason as to why these holes and cracks started appearing. The condition of the R.C.C. Slab also started ruined/dilapidated. On 10.6.2013 one representative of OP came and inspected the site and admitted the guilt and negligence of the OP and stated that they would replace the R.C.C.Slab but the same was not replaced. Thereafter, the complainant requested Dr. S.K.Madan, Professor Civil Engineering Department, NIT, Kurukshetra, who inspected the Slab on 1.8.2013 and gave his report dated 21.8.2013 wherein he observed that the compressive strength of the concrete used in the slab was for below the required strength which should be M-25 and further observed that the R.C.C. Slab is not fit for structural use. Thereafter, the complainant again contacted the OP on 5.9.2013 and apprised with the abovesaid report and made request to replace the abovesaid RCC Slab but nothing has been done by the OP. Hence complainant filed the present complaint. 2. Notice of the complaint was given to the OP, who appeared and filed written statement raising preliminary objections with regard to locus standi; has not come with clean hands and suppressed the true and material facts and complainant does not come under the definition of consumer. On merits, it has been submitted that no transaction of amount was taken in between the complainant and OP and no amount was agreed in between the parties to the complaint and no agreement was taken in between the parties. Complainant moved the application for the appointment of Local Commissioner and other application which have been withdrawn by the complainant. No amount has been given or taken in between the parties to the complaint. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint. 3. Complainant tendered into evidence affidavit of Pardeep Bhamba Ex.CW1/A and documents Ex.C1 to Ex.C16 and photographs mark A to E and closed the evidence on 11.9.2017 4. On the other hand, OP tendered into evidence affidavit of Satish Kumar Proprietor Ex.OW/A and closed the evidence on 7.12.2017. 5. We have heard the learned counsel for both the parties and perused the case file carefully and have also gone through the evidence led by the parties. 6. It is alleged by the complainant that complainant is a proprietorship firm having its office at marble market, Kunjpura Road, Karnal. It is further alleged that the complainant wanted to engage a building contractor for the work of R.C.C. Slab on the second floor of its building. It is further alleged that the complainant contacted the OP at its office and finalized all the terms and conditions required and settled for putting the R.C.C. Slab. It is further alleged that the OP has assured that the R.C.C. Slab would be put in the presence and care of civil engineer and the comprehensive strength of the same would be M-25 in the work R.C.C. Slab. It is further alleged that the OP normally used the cement of ACC plant and the same was supplied by M/s Gian Chand Satbir Singh, Railway Road Karnal and a mixture would be prepared with the help of building material and machine at his plant and the same could be used for the R.C.C. Slab. It is further alleged that accordingly the complainant placed order for 250 bags of cement with M/s Gian Chand Satbir Singh and the same was supplied at the site of OP on 31.5.2013 for preparation of mixture. It is further alleged that as agreed, the OP had levied the R.C.C. Slab of the complainant, but when the half of the works of the slab has been done, then the complainant was shocked to see that holes and cracks were started occurring in the slab and the complainant requested the OP to stop the work but the OP told that these holes and cracks would disappear after sometime. It is further alleged that with the passage of time, the holes and cracks were increased. It is further alleged that the condition of the slab started ruined/dilapidated and the complainant asked the OP to get inspected the slab from his civil engineer but neither the OP himself nor his civil engineer visited at the spot. It is further alleged that on the request of the complainant, Dr.S.K. Madan Professor Civil Engineering Department, NIT Kurukshetra has inspected the slab on 1.8.2013 and gave report dated 21.8.2013 and observed that the compressive strength of the R.C.C. slab was far below the require strength i.e. M-25 and further opined that the R.C.C. Slab in question was not fit for structural use. It is further alleged that thereafter the complainant again contacted the OP on 5.9.2013 and apprized the OP with the said report but no action has been taken by the OP. It is further alleged that inspite of repeated request the OP did not replaced the R.C.C.Slab. and finally refused on 28.10.2013 to accede the request of the complainant. The complainant sent a legal notice dated 18.11.2013. 7. The OP contended that the complainant does not come under the definition of consumer as no transaction of amount was taken place in between the complainant and the OP. It is further contended that no amount was agreed in between the parties to the complaint and no agreement had taken place between the parties and so the complaint is liable to be dismissed. It is further contended that no amount had been given or taken in between the parties. It is further contended that the complainant moved the application for appointment of Local Commissioner and other application which have been withdrawn by the complainant. 8. To prove its case, the complainant has produced in his evidence, the report of NIT, dated 21.8.2013 Ex.C1, Photostat copies of delivery challans, delivery ticket information/record and weighing report Ex.C2 to Ex.C13, legal notice and postal receipt Ex.C14 and Ex.C15, a CD Ex.C16 and photograph mark A to Mark E. As the OP has not admitted any execution of the agreement as well as the payment for hiring of the service, so the onus was on the complainant to prove its case. Besides the above mentioned documents and the affidavit, the complainant has not produced any other document. The complainant has not produced on the file any copy of the agreement as well as copies of terms and conditions agreed between the parties. To prove the terms and condition, the copy of agreement was very material for the just decision of the case but the complainant has not produced the same on the file. No doubt the complainant has placed the copy of the report dated 21.8.2013 of Dr. S.K. Madan Professor Civil Engineering Department, NIT Kurukshetra but the complainant has not proved on the file that on whose direction the R.C.C. Slab was inspected by the said doctor. Dr. S.K. Madan has neither been examined by the complainant nor his affidavit has been placed on the file. It is pertinent to mention here that to prove the said report elaborate evidence is required which includes detail examination and cross-examination of Dr. S.K. Madan as well as the link evidence which is not possible in this summary procedure. The complainant has also not produced any documentary evidence regarding the payment of the consideration for hiring the services from the OP or the consideration which was agreed to be paid for the same from the OP. The complainant has also failed to prove on the file that the R.C.C. Slab was constructed by the OP. In these facts and circumstances of the case, we are of the considered view that the complainant has failed to prove on the file the allegations levelled by the complainant in his complaint. 9. Thus, as a sequel of above discussion, we do not find any merit in the present complaint and the same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance. Announced Dated: 3.1.2018 President, District Consumer Disputes Redressal Forum, Karnal. (Anil Sharma) Member